Findings concerning the disputed evidence
76 It is against that evidentiary background that I must make the relevant findings of fact. I remind myself that any feature of the case which aggravates the offender's conduct must be established by the Crown beyond reasonable doubt. That being so, it is inevitable that there will be matters about which I will be simply unable to reach a conclusion. The task in the present case is made all the more difficult because there are significant differences in the version of events given by each of the three participants in these crimes. It is appropriate to observe that none of them proved to be completely reliable witnesses. Each sought to minimise the extent of their own involvement whilst shifting the blame on to the others. That said, in my view, of the three participants, Flentjar demonstrated the greatest, and the offender the least, capacity for candour.
77 It is convenient to now deal with the different parts of their evidence commencing with the events prior to 28 January 2006. I have little difficulty in accepting the broad thrust of the account given by Lea-Caton concerning the initial approach which the offender made to him to provide her with a favour. Not only did he raise the issue with his sister and brother-in-law, but there was strong support for his version of events in the evidence of Josh Gowers who was present during the conversation. I found Mr Gowers to be a transparently honest witness and Mr Radojev very properly conceded that no conceivable basis existed for rejecting his account. I would also accept the general import of the account given by Flentjar concerning the initial approach made to him by the offender. I observe that there is support for it in the evidence given at his trial by Ms Cowen. Moreover, there are common elements in the overtures made to Lea-Caton and Flentjar by the offender, neither of whom, as I have said, knew each other prior to these events. Flentjar's assertion that he told Mr Hosa during the assault that he was a child molester, a matter confirmed by Lea-Caton, can only be explained upon the basis that that is what he was told by the offender. In the final analysis, as the Crown aptly observed, it is inherently improbable that two men who did not know each other or the deceased would have embarked upon this enterprise independently of the offender.
78 I am inclined to the view that the offender deliberately told somewhat different stories to Flentjar and Lea-Caton in order to increase the likelihood that each would be persuaded, by what they were told, to assist her. Having said that, there is no evidence to suggest that either of the allegations made by the offender contains a shred of truth.
79 Moreover, I reject as utterly implausible the offender's endeavours to explain away this body of evidence. I do not regard as credible the suggestion that each of them, separately, had been confused as what precisely they were told by the offender. On the contrary it is extremely unlikely, given the stark nature of what the offender told each of them, that either, let alone both of them would not have clearly recalled what they had been told.
80 In light of what I just said, it is unnecessary for me to have regard to the "tendency evidence". Nevertheless, it is palpably clear that were I to do so, that that body of evidence would provide compelling evidence of the offender's propensity to act in the particular fashion asserted by the Crown.
81 I turn now to consider the events of 28 January. At the outset I observe that there is a common theme running through the accounts given by Lea-Caton and Flentjar as to the circumstances in which they came to be in the premises at 14 Calymea Street that afternoon and, at least so far as the initial stages of the episode are concerned, what occurred whilst they were there. For that reason, amongst others, I again accept the general thrust of their evidence and in particular that the offender prevailed upon each of them to assist her in the detention of the deceased couple. I am fortified in my view by the realistic approach taken by Mr Radojev. He appeared to acknowledge, notwithstanding the legitimate criticisms which could be made of their evidence, that I could nonetheless accept this aspect of it.
82 Accordingly, I accept that the offender collected Flentjar from his house, waited whilst he changed and then drove him to 14 Calymea Street where he met Lea-Caton for the first time. I accept that she then informed them as to what was to occur. I accept that she then called Mr Hosa and that the call lasted for 96 seconds. I am unable to determine what she said to him but it is clear that she was able to persuade him to attend the premises. I accept that when he arrived at the premises he was set upon and overpowered. I accept that he was struck to the head causing him to bleed and that he was also forced to the ground. Although, I am unable to determine whether it was Lea-Caton or Flentjar who struck the blow, I accept that both of them as well as the offender were present at the time.
83 I accept that Flentjar had, as he said, disguised himself with a balaclava. I accept Flentjar's evidence that the offender was angry that Mr Hosa had been struck even though Lea-Caton, at least, had been led to believe that that is what was in contemplation. Having said that, it may be that her primary concern arose, as the Crown submitted, from the fact that there was blood in the house. I accept that Mr Hosa was then "hog-tied" by one or more of the offenders. I accept that the offender became concerned that Ms McKay would raise the alarm if her husband did not return home. I accept that that concern prompted her to contact Ms McKay and persuade her to also attend the premises. I accept that Ms McKay in turn was set upon when she entered the premises. I accept that she was forced to the ground where she too was "hog-tied". I accept that there was plenty of material, in the form of masking tape, in and around the house to enable the two victims to be restrained in the manner disclosed in the evidence. It is clear that each of the offenders was present during this part of the episode and that each bears responsibility for what occurred during that period of time.
84 I accept that Ms McKay's vehicle was then returned to Champagne Shires and that the offender then returned Flentjar to his place. I was not asked to, and nor do I intend to go behind the jury verdicts and accordingly I will proceed upon the basis that Flentjar played no further part in the events at 14 Calymea Street. I accept that the offender returned to those premises after having obtained cleaning products. I accept that Lea-Caton struck Mr Hosa during the period that the offender was absent from the premises.
85 As I have indicated, I have had little hesitation in arriving at the facts which I have just outlined. I have already referred, in that context, to the significant degree of consistency in the version of events provided by Lea-Caton and Flentjar and to the fact that the offender is the common denominator in this group of people given that she was the only one of them who knew all the others. She alone of this group of people had a reason to arrange for them all to be in the one place at the one time. Nevertheless, I propose to explain in a little more detail why I have had almost no difficulty in rejecting the offender's account of the events. I observe that although Mr Radojev submitted that the offender's evidence could be accepted he did not identify, when invited to do so, any particular reasons why it should be. I have no doubt that the offender sought in giving her account, which it is to be noted she gave for the first time during the sentencing proceedings, to tailor it to the inescapable objective facts which had been established. Included in those facts are her use of her mobile phone to contact each of the victims, CCTV footage of her obtaining cleaning products and the various pieces of forensic evidence linking her to these crimes. Moreover, she steadfastly denied things that would seem indisputably to have occurred. Purely by way of example, Flentjar said that he was wearing a balaclava and that he told Mr Hosa, when he enquired why he was being assaulted, that he was a child molester. Lea-Caton, as I have said, confirmed each of these matters in his evidence. It is difficult to see why Flentjar would volunteer those things, which reflected adversely upon him, unless they were true. The reason no doubt why the offender denied that they had occurred was her realisation that, if she accepted that they had happened, that state of affairs would strongly support Flentjar's evidence as to what the offender had told him in order to enlist his assistance in her enterprise. The offender's inability to satisfactorily explain why she needed Flentjar to help her remove the rubbish when she already had Mr Hosa committed, on her version, to coming over to her house during the same time-frame reflected adversely upon her credibility. Her explanation, during cross-examination, that she had "completely forgotten" that Mr Hosa was coming over defied credulity. Likewise the offender's evidence that she had had a fight with Lea-Caton that afternoon before the victims arrived, is in my view, quite fanciful. Nor is her account that she told him that afternoon, that he had to move out, consistent with the rest of her evidence. On the contrary, she said that just prior to that conversation she had walked around the property with him pointing out the improvements that needed to be done on the property. Moreover, she maintained that she had gone to great lengths that weekend to obtain feed bins for Lea-Caton to put feed in. That was despite the fact that there had apparently been none on the property since her departure from it in early December.
86 Her evidence that Lea-Caton threatened her if she went to the police simply cannot be accepted, particularly as it is at odds with other parts of her evidence. For example, it cannot be reconciled with her evidence that she drove from the Flentjar residence to 14 Calymea Street at about midnight to collect Lea-Caton so that they could return to the Tomerong State Forest and pour more petrol into the barrels. That conduct is hardly consistent with her assertion that she was fearful of him.
87 Furthermore, despite her evidence that she wanted to report the matter to the police, the offender did not take opportunities to contact them when they clearly presented themselves. One such opportunity arose when she and Flentjar left Lea-Caton alone in the premises with the victims whilst she went and obtained bleach. Moreover, she was forced to concede in cross-examination that she was able to make a considerable number of phone calls that evening without any interference at all from Lea-Caton. Nor did she not take the opportunity during any of those calls to ask anyone to contact the police on her behalf. Indeed, when the offender had the chance to speak to police the following morning she sought to mislead them. In the circumstances, there is no conceivable basis upon which her culpability could be reduced because she was, in some way, acting under duress from Lea-Caton.
88 The offender's endeavour to explain the circumstances in which she acquired the barrels, was likewise palpably false. It was, in my view, an elaborately designed piece of fiction created for the purpose of suggesting that their acquisition had an entirely benign explanation. If she had really wanted to discuss with Mr Hosa the possibility of providing her with feed bins, it is difficult to understand why she did not contact him by phone. It is clear that she had his number. Nor is there any satisfactory explanation as to why she and he could not have had the discussion about the horses at his place when she had gone there for the specific purpose of talking to him. Nor do I regard it as likely that Mr Hosa would have simply handed over two of his three feed bins to the offender on the basis which she outlined in her evidence.
89 It would be a coincidence of the most astonishing proportions were the 44 gallon drums to have been acquired in the innocuous circumstances described by the offender on the very day on which they were then used for the purpose of transporting the bodies of the deceased couple from her premises to Tomerong State Forest. Although I am unable to determine at precisely what stage the offender obtained the barrels it is highly likely that she collected them on her way back from the trip during which Ms McKay's car was returned and the bleach was obtained. Such a conclusion would be consistent with the undeniable fact that that trip was undertaken for the express purpose of removing any evidence that would indicate that either of the victims had been at the offender's premises that afternoon. Of the three participants in these crimes, the offender alone knew that there were barrels to be found at Champagne Shires. In the circumstances, I am quite certain that she took them from the sheds at Champagne Shires without having permission to do so, at a time when one or either of the two victims had already been killed or at least, when the eventuality that they would be, was in contemplation.
90 One of the things that I have been unable to determine is what motivated the offender to act as she did. Nor could counsel shed any light on the matter. One can speculate about her motivation but the evidence, being in the unsatisfactory state in which it is, does not permit me to reach any firm conclusion about it. Nevertheless, I am left in no doubt that she entertained some grievance in relation to one or both of the victims and that she was determined to act upon it, and that it was in those circumstances that she enlisted the support of her co-offenders. Nor am I able to identify what that grievance may have been or indeed whether any basis existed for the offender to entertain it. For the same reasons, I am unable to determine what advantage she was seeking to obtain from the detention of the deceased couple.
91 When the Crown Prosecutor opened to the jury he indicated, so far as the counts of murder were concerned, that the case against the offender was put on three alternative bases. The first basis was that the offender was a principal in the first degree in that each of the deceased died as a result of a fatal act or acts administered to them by her. The second basis was that the offender was a principal in the second degree, that is that she was present at the time each of them was killed by another person or persons with the requisite intention and that she encouraged or assisted or stood by ready to assist if need be, the person or persons who actually killed the deceased. The third way in which it was alleged that her liability arose was based upon what is known as "constructive murder" or "felony murder" which is satisfied if the act causing death was done "during or immediately after the commission by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or 25 years". The foundational crime for that basis in the present case, is the specially aggravated form of kidnapping which, as I have said, attracts a maximum penalty of 25 years imprisonment.
92 I was informed by Mr Radojev that it was upon the latter basis that the pleas of guilty were entered and that the offender should, consistently with her evidence, be sentenced accordingly. In due course I will explain why I do not accept that submission and I should once again record that it was not pressed with any great vigour. In any event, an offence which is characterised as a "felony-murder" does not for that reason alone dictate the conclusion that a lower level of culpability is involved than applies to other categories of murder: see R v Mills (unreported, NSWCCA, 3 April 1995). The seriousness with which a particular instance of felony-murder is to be regarded depends "on the nature of the acts of the offender which played a part in the death of the victim": R v JB and RJH [1999] NSWCCA 93 at para 33.
93 There is of course evidence in the Crown case which is capable of supporting the conclusion that the offender is a principal in the first degree. It emerges from the testimony of Lea-Caton who gave evidence that the offender personally killed each of the deceased persons.
94 A significant part of the dispute about the facts was directed to that issue. Before I could conclude that the offender was a principal in the first degree, the Crown would need to establish that fact beyond reasonable doubt. Because the Crown realistically concedes that it cannot discharge that burden, I need only briefly state my reasons for accepting that concession. First, the evidence of Lea-Caton, at least so far as this central issue is concerned, remains uncorroborated. The dangers of acting upon the uncorroborated evidence of an accomplice are well documented and require no repetition in the present context. Secondly, it is common ground that Lea-Caton has told palpable lies at different stages of these proceedings. When he first spoke to police he denied any involvement in these offences whatsoever. He was only slightly more forthcoming when he was re-interviewed a few hours later by which time police had acquired a little more information about the circumstances surrounding these offences. Indeed, he acknowledged in cross-examination that the reason he had lied to police was in an endeavour to cover up his own involvement in these matters. In fact it was only at his sentencing proceedings that the offender acknowledged for the first time his involvement in them. Even now, I am inclined to the view that he has not been completely candid as to the full extent of his involvement. Thirdly, some differences in detail have emerged in his recounting of the events of the day in question. That is perhaps understandable given that he has now given evidence on no fewer than three occasions. Those discrepancies, in the main, reflect more upon his reliability than his honesty. They are no doubt attributable, in part, to the serious brain damage that he suffered some years ago in a serious motorcycle accident, and to the effects of his lengthy history of abusing illicit drugs. Finally, it is indisputable that Lea-Caton has in the past had a real difficulty in controlling his anger. Moreover, he has a record which includes instances of serious violent offending. The reasonable possibility that he acted in such a fashion on this occasion cannot be excluded.
95 That is not to say for a moment however that I do not accept other aspects of Lea-Caton's evidence. It is apparent from what I have already indicated that I am prepared to do so, and particularly where there is support for it in other parts of the evidence.
96 The net result is that I am not satisfied to the requisite standard that the offender should be sentenced as a principal in the first degree. On the other hand I would reject out of hand the offender's version of events and in particular where her evidence relates to any matter of significance. I have already indicated some of the reasons why I regard her evidence as being entirely unsatisfactory. In my view she sought to cast herself as an unwitting spectator to these events in which acts of violence apparently occurred quite spontaneously. That portrayal is not only at odds with the reality of the situation but nor is it entirely consistent with her own evidence that she told Lea-Caton that if she ever found out who had left the videotape of herself and Mr Hosa, she would "give them a flogging". Because I am not prepared to accept the offender's account as being reasonably possible, it follows that I am unable to sentence her upon the version of events which she advanced.
97 It is clear from the evidence that there was no dispute between the offender and Lea-Caton as to the manner in which the victims died or the state of mind of the person who inflicted the fatal wounds. The issue related only to which of them had actually committed those acts. I am prepared in those circumstances to accept that Ms McKay was suffocated and that Mr Hosa was strangled. There is objective evidence to support at least the latter finding in the post-mortem examination. However, I am left unable to decide at whose hand they died or precisely what precipitated their deaths or indeed even when they each died.
98 It is apparent that there is no available evidence upon which I could properly find that the offender embarked upon this enterprise with the intention that the deceased couple should be killed. On the contrary, common sense would suggest that ordinarily a person does not set out to kill a person from whom one is seeking to obtain an advantage. One possible explanation as to what occurred is that one of the victims struggled, and there is some evidence that Ms McKay did so, and that in endeavouring to subdue her a decision was made to kill her and then her husband. Obviously there are other possibilities which present themselves. In the final analysis however, I simply cannot determine with any confidence exactly what occurred. Nor, as I have just said, can I determine precisely when each of them died. Lea-Caton gave evidence that they were killed one after the other at some stage after the offender returned with the cleaning product. The offender however gave evidence that she believed, from what Lea-Caton told her, that Ms McKay was already dead before she and Flentjar left the premises. She went on to say that upon her return, Lea-Caton told her that Ms McKay had not in fact been dead at the time, but that he had proceeded to kill her whilst the offender was away from the premises. The offender said that Mr Hosa was killed in her presence upon her return to the premises. I am simply unable to determine, as between those two versions, where the truth lies.
99 There is however no substantial disagreement as to what occurred after the deceased couple was killed. I accept that the bodies were placed into the barrels and left in the back area of the house until darkness fell. The decision was then taken to get rid of Mr Hosa's vehicle and to that end the offender and Lea-Caton took it out to Braidwood Road where it was set alight by Lea-Caton. The decision was also taken to transport the barrels out to the Tomerong State Forest where they were set alight using petrol that Lea-Caton had purchased at the service station on the way. I accept that the offender then drove Lea-Caton to the Calymea Street premises before returning herself to the Flentjar residence. I accept that there was, as the offender's daughter said, a bonfire at those premises and that various items were destroyed in it which may have otherwise associated the offender (and others) with these crimes.
100 It is clear that the offender was, by then at least, very intent on concealing her involvement in these offences. Indeed, in her evidence she conceded as much. That is why she returned, with Lea-Caton, to where the barrels were burning in an endeavour to destroy what remained of the bodies.
101 The offender gave evidence, the effect of which is that the things that she did in covering up the offences were all done at the behest of Lea-Caton. He of course maintained that the offender was the driving force. I am not disposed to accept either proposition. I am of the view that the two of them were united in purpose in attempting to conceal what they had done and that each was fully involved in doing so. The repeated references by the offender in her evidence to the fact that she only did what she was told to do by Lea-Caton is simply a further demonstration, in my view, of her inability to take appropriate responsibility for her actions. I have little doubt, for example, that the offender was instrumental in selecting the areas in which Mr Hosa's vehicle and the barrels were to be destroyed. They were, as I have said, locations with which she was very conversant being areas to which she went in order to train her dogs.
102 Although I cannot identify with precision the extent of the offender's role, I am quite certain that she performed a pivotal role in the events which culminated in the deaths of Mr Hosa and Ms McKay. Not only is that apparent from everything that she did preceding the deaths but also from all the circumstances in which the deaths themselves occurred as well as from her enthusiastic participation in the subsequent attempts to cover them up. Also of some importance upon this issue are the remarks, which I have little hesitation in accepting, that she made to her ex-husband when she first went into custody. Those utterances, when read in the overall context of the case, constitute clear and damaging admissions by the offender that her culpability was of such an order as to warrant the imposition of a very lengthy term of imprisonment. To that material, may be added the admissions which she made to Flentjar. Be that as it may, the parties were in agreement that no proper basis could be made out for drawing a distinction, so far as the murders were concerned, between the objective gravity displayed by Lea-Caton, whom I sentenced as a principal in the second degree, and that displayed by the offender.
103 I have received victim impact statements from the sisters of the deceased, Ms McKay. The feelings which they have so eloquently expressed and the grief which they and their families have suffered is entirely understandable. They refer, in particular, to the devastating effect which the deaths of his parents have had upon their young son. The family have understandably found it particularly galling that the deceased couple met their fate partly as a result of the actions of someone whom they knew. It is quite impossible to adequately summarise the family's sense of loss in a few sentences and to do so, or to attempt to do so, would detract from the contents of their statements. Clearly no sentence which any court could impose can ever begin to make good that loss. I extend to the family and friends of the deceased persons my deepest sympathy. The approach of a sentencing judge to statements of this kind is nevertheless now well settled: see R v Previtera (1997) 94 A Crim R 76; R v FD & JD (2006) 160 A Crim R 392; MAH v R [2006] NSWCCA 226.